In the Supreme Court's 5-4 decision to cripple the Voting Rights Act, the majority barely even tried to pretend that its ruling was based on any logic other than blatant right-wing judicial activism

Ruth Bader Ginsburg, in her dissent, called the decision an act of "hubris" that "errs egregiously by overriding Congress’ decision.” "Hubris" doesn't seem like an excessively strong word. The majority brushed aside the fact that the Voting Rights Act had not merely been re-authorized by Congress as recently as 2006, but overwhelmingly re-authorized. It also, perversely, turned the successful record of the voting Rights Act (see the chart above) into a reason for crippling the key enforcement provision that has helped make it successful..

“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” she wrote. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed. … With that belief, and the argument derived from it, history repeats itself.”

The substantive result is a blow to democracy. But what legal or constitutional reasoning did the majority use to justify its decision? The more carefully one considers that reasoning, the more flimsy, tendentious, and unconvincing it looks. Various analysts have been demonstrating this, but for the moment let's just highlight two of them, Kevin Drum and Richard Posner

=> Kevin Drum compared Tuesday's decision with the Court's decision in another voting-rights case in 2008:

In 2008, the Supreme Court decided Crawford vs. Marion County Election Board. Previously, the state of Indiana had passed a statute requiring voters to show photo ID at polling places, something that was likely to disproportionately hurt black turnout. Indiana's justification for the law was its interest in preventing voter fraud, something that they were unable to demonstrate even a single case of. Nonetheless, the court upheld the law under this reasoning:

If a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. [Etc. ....]

Today, the Supreme Court decided Shelby County vs. Holder, an attack on the "preclearance" requirement of the Voting Rights Act. In 2006, Congress renewed the Act for 25 years, and after considering voluminous evidence decided not to make changes to the formula for deciding which states require preclearance for changes to their voting regulations and which ones don't. Nonetheless, the court overturned the law [....]

Note the difference. In Crawford, where the target is a law that's likely to disenfranchise black voters, the bar for constitutionality is almost absurdly low. Regardless of what the real motives of the lawmakers are, or what the likely effect of the law is, it's valid if the state merely asserts a "neutral justification." That's it.

But in Shelby County, where the target is a law designed to protect black voters, the bar for constitutionality is suddenly much higher. Even though the Fifteenth Amendment gives Congress the unconditional right to enact legislation designed to prevent states from abridging the right to vote "on account of race [or] color," the court ruled that, in fact, Congress is quite fettered after all. It cannot decide to simply renew a law that it thinks is working well. Instead, it's required by the court to update its formulas to satisfy the court's notions of what's logical and what isn't.

So here's your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that's OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that's prohibited unless the Supreme Court can be persuaded that Congress's approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.

=> OK, Drum is a left-of-center Democrat. But here is an assessment from the right-of-center federal judge, law professor, and (implausibly prolific and wide-ranging) public intellectual Richard Posner. Posner has never been much of a stickler for precedent and proceduralism, but the way that the majority simply conjured up the alleged basis for its decision out of thin air was too much for him:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that [...] there is no such principle. [....]

It’s possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority. But Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

The majority opinion in Shelby acknowledges that racial discrimination in voting continues, but notes that the situation has improved since 1965 and that the procedures in the current Voting Rights Act do not make a clean fit with the current forms and pattern of discrimination. Ordinarily however a federal statute is not invalidated on the ground that it’s dated. [....] And the criticisms of the statute in the majority opinion are rather tepid. That’s why the court’s invocation of “equal sovereignty” is an indispensable prop of the decision. But, as I said, there is no doctrine of equal sovereignty. The opinion rests on air.

Emily [Bazelon] calls Chief Justice Roberts a “stealth conservative” whose “genius” is to conceal his political agenda. That’s a roundabout way of saying that a modest, pedestrian opinion may
be more effective than one that, being forthright and candid, thrusts
its inadequacies in the reader’s eye. But the real key to “stealth”
jurisprudence is patient, crafty incrementalism (no conservative
monopoly on that strategy, of course). It’s a strategy illustrated by Shelby’s predecessor, the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, heavily cited in Shelby. That was a case in which Chief Justice Roberts, again writing for the majority, criticized the same part of the Voting Rights Act, and invoked the same imaginary doctrine of “equal sovereignty,” yet without actually invalidating anything, and so avoiding a dissent by the liberal justices. So now in Shelby he could quote extensively from his opinion in Northwest Austin as if to imply that really there was nothing new here—just a small and logical next step.

Was that a disreputable tactic, or merely a clever one?

=> So, since it's hard to see a convincing constitutional or procedural justification for this decision, our assessment of it has to center on its substantive content and probable consequences. In this respect I think Kevin Drum, again, cut to the heart of the matter:

Ten years ago I might have had a smidgen of hope that this would turn
out OK. There would be abuses, but maybe not horrible, systematic ones.
Today I have little of that hope left. The Republican Party has made it
crystal clear that suppressing minority voting is now part of its
long-term strategy, and I have little doubt that this will now include
hundreds of changes to voting laws around the country that just
coincidentally happen to disproportionately benefit whites. There will
still be challenges to these laws, but I suspect that the number of
cases will be overwhelming and progress will be molasses slow. This
ruling is plainly a gift to the GOP for 2014.

And, in fact, Republican state governments got started immediately. But perhaps this might backfire on them eventually? Stay tuned ...

About Me

Jeff Weintraub is a social & political theorist, political sociologist, and democratic socialist who has been teaching most recently at the University of Pennsylvania, Bryn Mawr College, and the New School for Social Research, He was a Visiting Scholar at the Center for European Studies at Harvard University in 2015-2016 and a Research Associate at the Graduate School of Social Work and Social Research, Bryn Mawr College.
(Also an Affiliated Professor with the University of Haifa in Israel & an opponent of academic blacklists.)